משנה: הַשּׁוֹאֵל אֶת הַפָּרָה וְשָׁאַל בְּעָלֶיהָ עִמָּהּ. שָׁאַל אֶת הַפָּרָה וְשָׂכַר בְּעָלֶיהָ עִמָּהּ. שָׁאַל אֶת הַבְּעָלִין אוֹ שְׂכָרָן וּלְאַחַר כָּךְ שָׁאַל אֶת הַפָּרָה וָמֵתָה פָּטוּר שֶׁנֶּאֱמַר אִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם. אֲבָל שָׁאַל אֶת הַפָּרָה וְאַחַר כָּךְ שָׁאַל אֶת הַבְּעָלִין אוֹ שְׂכָרָן וָמֵתָה חַייָב שֶׁנֶּאֱמַר אִם בְּעָלָיו אֵין עִמּוֹ שַׁלֵּם יְשַׁלֵּם. MISHNAH: If somebody borrowed a cow and asked its owner [to work with him], or borrowed a cow and paid its owner [to work with him], or asked or paid its owner [to work with him] and then borrowed the cow: if it died he is not liable since it was said: “if its owner was with it he does not pay1Exodus.22.14">Ex. 22:14. The verse is read to mean that the borrower is not liable to pay for an animal which dies while working for him if its owner also was working for him all the time the animal was working. The owner need not be near the animal at the moment of its death..”
But if he borrowed the cow and afterwards asked or paid its owner [to work with him] and it died he is liable since it was said: “if its owner was not with it, certainly he shall pay.2Exodus.22.15">Ex. 22:15.”
הלכה: הַשּׁוֹאֵל אֶת הַפָּרָה כול׳. אָמַר רִבִּי אִילָא. מִמַּשְׁמַע שֶׁנֶּאֱמַר שַׁלֵּם יְשַׁלֵּם אֵין אָנוּ יוֹדְעִין אִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם. מַה תַלְמוּד לוֹמַר בְּעָלָיו אֵין עִמּוֹ שַׁלֵּם יְשַׁלֵּם. אֶלָּא מִכֵּיוָן שֶׁשָּׁאַל הַפָּרָה וְלֹא שָׁאַל בְּעָלָהּ עִמָּהּ אַף עַל פִּי שֶׁהַבְּעָלִין חוֹרְשִׁין עַל גַּבָּהּ וָמֵתָה חַייָב. HALAKHAH: “If somebody borrowed a cow,” etc. Rebbi Ila said, from the meaning of what is said, “certainly he shall pay”; would we not have known that if its owner was with it he does not pay? Why does the verse say, “if its owner was not with it, certainly he shall pay”? But since he borrowed the cow and did not ask its owner at the same time, even if the latter was ploughing with it when it died, he is liable.
אֲבָל שָׁאַל אֶת הַפָּרָה וְאַחַר כָּךְ שָׁאַל בְּעָלָהּ אוֹ שְׂכָרָן וָמֵתָה חַייָב. אָמַר רִבִּי לָא. מִמַּשְׁמַע שֶׁנֶּאֱמַר אִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם אֵינִי יוֹדֵעַ שֶׁאִם אֵין בְּעָלָיו עִמּוֹ שַׁלֵּם יְשַׁלֵּם. וּמַה תַלְמוּד לוֹמַר בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם. אֶלָּא מִכֵּיוָן שֶׁשָּׁאַל אֶת הַפָּרָה וְשָׂכַר בְּעָלָהּ עִמָּהּ אַף עַל פִּי שֶׁהַבְּעָלִים חוֹרְשִׁין בְּמָקוֹם אַחֵר וָמֵתָה פָּטוּר. “But if he borrowed the cow and afterwards asked or paid its owner [to work with him] and it died he is liable.” Rebbi La said, from the meaning of what is said, “if its owner was not with it, certainly he shall pay,” would I not have known that if its owner was not with it, certainly he shall pay? Why does the verse say, “if its owner was with it he does not pay”? But since he borrowed the cow and did ask its owner at the same time, even if the latter was ploughing at another place when it died, he is not liable3A similar, tannaïtic, text is in the Babli, 95b, and Mekhilta dR. Simeon bar Ioḥai 22:14 (p. 206–207). In the language of Mekhilta dR. Ismael (Neziqin 16, p. 306): The borrower has to pay if the cow was out of its owner’s control even for one moment..